INTRODUCTION

The confidentiality is an essential ingredient for the protection of innovation in the world of intellectual property rights. Therefore, it guarantees that mesmerizing ideas and delicate data are never violated by intruders from unauthorized use. Hence by maintaining absolute secrecy firms can keep their business advantage intact as well as ensuring that they do not lose any other legal rights related to inventions. This doctrine serves as a hideout where it keeps whatever information that is important, be it spoken or written or even shown till it is made known in a lawful manner.[i]

Keywords: confidentiality, Trademark, Patent, Intellectual Property Rights, copyright, Infringement, Public domain etc…

Let’s understand it with an illustration

At a tech corporation’s closed seminar, Dr. Sarah Collins, an expert computer scientist presented her private artificial intelligence algorithm. She provided academic paper entitled “confidential” and marked out the shape of the algorithm on a blackboard later; she could tell that an engineer applied it to his project, one other guest forwarded the academic paper to some competitor while someone else whose name remains unknown made public her secret content. From this instance, confidentiality as an instrument for safeguarding intellectual property is underscored.

DOCTRINE OF CONFIDENTIALITY

In the aspect of intellectual resources, there exist certain terminologies pertaining to the secrecy involved in trademarks, patents and copyrights, which include:

1. Trademark: Trade Secret

2. Copyright: Unpublished Works
3. Patent: Proprietary Information or Pre-Disclosure Information

Let’s discuss them one by one:

THE TRADE SECRET

Black law dictionary– “a formula, process, device or other business information that is kept confidential to maintain an advantage over the competitors. It is the information which includes formula, pattern, compilation, programme, device, method, technique or process. That derives independent economic value from not being generally known or readily ascertainable by others who can obtain economic value from its disclosure or use.”[ii]

Trade secrets are part of intellectual property (IP) rights that protect information that is secret and can be sold or licensed. For information to be considered a trade secret, it must:

1. Have commercial value because of its confidentiality.
2. Only be familiar to a small number of people.
3. The possessor avails himself of the protection required to ensure that his or her reasonable measures are put in place such as confidentiality agreements with the business partners and the employees.[iii]

American Express Bank, Ltd. v. Priya Puri

“32. Regarding alleged confidentiality about the customers names and addresses and their financial portfolios, it is being canvassed that since it is confidential, the plaintiff has an exclusive right to deal with these customers. Reliance has been placed by the plaintiff in Lansing Linde, Ltd. v. Kerr, [(1991) I All E.R. 418J, to contend as to what constitutes trade secrets and confidential information. Defining what constitutes trade secrets and confidential information Lord Staughton held as follows:

“a trade secret is information which, if disclosed to a competitor, would be liable to cause real or significant harm to the owner of the secret. I would add first, that it must be information used in a trade or business, and secondly that the owner must limit the dissemination of it or at least not encourage or permit widespread publication.”[iv]

This case clearly explains how confidentiality help in trademark cases.

COPYRIGHT: UNPUBLISHED WORKS

Many case scenarios associated with breach of confidence also involve claims of copyright. Therefore, understanding the subtle but substantial distinction between copyright and trade secrets or confidential information is crucial. Additionally, copyright possesses over expressions that are permanent or put down into form but law on confidence guards speech or written words. On the other hand, while Copyright is a right in rem; breach of confidence holds well against all those who had had it shared with them, therefore making it a right in personam.[v]

Tarun Wadhwa v. Saregama India Ltd.

“30. Breach of confidentiality and copyright infringement are closely tied. The Former is frequently claimed for matters that cannot be the subject of copyright infringement. An idea in particular cannot be the subject of a copyright infringement action but it may be the subject of breach of confidentiality. Either may yield a broadly similar injunction. There is no copyright in India except as provided by the Copyright Act, 1957. But this is not in derogation of a claim of breach of trust or confidence.”[vi]

The case identify the fact that confidentiality is an essential aspect of copyright as it keep it safe from infringement

PATENT: PROPRIETARY INFORMATION OR PRE-DISCLOSURE INFORMATION

In the field of patent law, maintaining secrecy involves dealing with the disclosure issue in the patent applications as well as safeguarding the proprietary information prior to the grant of any exclusive rights. This is essential in retaining the competitiveness of innovations and preventing their unlawful exploitation. India has incorporated this principle into its patent laws ever since 1991 after economic liberalization and adoption of TRIPS Agreement. Patent applications are required to disclose sufficient details concerning an invention for it to be appreciated by other people but trade secrets which are not patentable are also held on in order that there may be some balance between confidentiality and openness.[vii]

THE PUBLIC DOMAIN EXCEPTION

Public domain is defined in Black’s Law Dictionary, Eighth Edition at page 1265 thus:-

“When copyright, trademark, patent, or trade secret rights are lost or expire, the intellectual property they had protected becomes part of the public domain and can be appropriated by anyone without liability for infringement. Public domain is the status of an invention, creative work, commercial symbol, or any other creation that is not protected by any form of intellectual property. Public domain is the rule: intellectual property is the exception.”[viii]

Megarry J in Coco v. AN Clark (Engineers) ltd

“Something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. Novelty depends on the thing itself. And not upon the quality of its constituent parts. Indeed often the more striking the novelty, the more commonplace its components.”[ix]

In this case it is well explained that when an intellectual property right component is not protected under law if they are expired.

PREVIOUS ATTEMPTS AT POLICY LEGISLATION IN INDIA

1. THE NATIONAL INNOVATION BILL (2008): the department of science & technology has introduced a bill, in which the chapter 4 was titled as “confidentiality and confidential information and remedies and offences”

2. US INTERVENTIONS (2016): India and US has released a joint statement in 2016, which has a document “special report 301” related to confidentiality.

3. NATIONAL INTTELLECTUAL PROPERTY RIGHTS POLICY 2016: department of industrial policy & promotion (DIPP) had released the national intellectual property rights polic , 2016 to spur creativity and stimulate innovation in India.

4. PARLIAMENTARY STANDING COMMITTEE REPORT (2021): the department related parliamentary standing committee on commerce in its 16^th It undertook a review of IPR regime in India. [x]

After 2021 no specific measures were taken in the field if IPR to protect confidentiality.

SUGGESTIONS

• Update Policies: an update in policies is much needed as there is no specific measures have been taken after 2021.
• Improve Enforcement: India have taken few measures to protect confidentiality but the enforcement needs to be sterner.
• Enhance Protection: Strengthen legal protections for trade secrets and proprietary information.
• Clear Guidelines: Indian have signed TRIPS or other agreements and made rules but the guidelines are confusing to use, they need to be clearer.

CONCLUSION

Confidentiality is very important in Intellectual Property because it helps to protect from loss of privileged information and maintain competitiveness of companies. In India, one can note that reforms carried out since 1991 and compliance with TRIPS deal with issues like transparency against trade secret protection as in American Express Bank, Ltd. v. Priya Puri. Copyright protects fixed expressions while breach of confidence provides protection for shared information against unauthorized use; the former is a right in rem and the latter a right in personam. For instance, patents require detailed disclosure but they also cover non-patentable proprietary information. Once the One Patent Right has been exhausted, any other person can use it freely. Both past and current attempts at stealing or keeping secret on such issues are seen to be in National Innovation Bill as well as various reports which encompass topical contents even on confidentiality into laws governing IP.

[i] https://www.researchgate.net/publication/344372529_Confidentiality

[ii] Black’s Law Dictionary 9^th ed., at 1633.

[iii] https://www.wipo.int/tradesecrets/en/

[iv] (2006) 3 LLN 217 : (2006) 110 FLR 1061

[v] https://www.lexology.com/library/detail.aspx?g=1aeae852-f1e9-46e9-a3f2-a6a0d4280696

[vi] Tarun Wadhwa v. Saregama lndia Ltd., (2021) 88 PTC ‘423: zee telefilms Ltd v , Sundial Contmuhicdt ions

[vii] https://www.wipo.int/patent-judicial-guide/en/full-guide/india

[viii] Bombay Dyeing and Manufacturing Co. Ltd. v. Mehar Karan Singh, (2010 ) 7 Mah LJ 48

[ix]  ( 1969) R.P.C. 41

[x] https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2024/03/202403061564451233.pdf

AUTHOR: MS. PRAGATI TOMAR (Prestige Institute of Law)